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Weekly Digest of Important Opinions of the

State Courts of Last Resort and of the Federal Courts.

Copy of Opinion in any case referred to in this digest may be procured by sending 25 cents to us or to the West Pub. Co., St. Paul, Minn,

....... 6


....35, 57

...... 38


..................... .31, 50, 53, 61 California...

.......60, 69, 80 Conneeticut Delaware.

................8, 21, 55, 78, Florida ... Illinois

............. Kentueky ...

...............12, 54 Louisiana......

.......40, 58, 75 Maryland ....

................ 63 Minnesota ...

------ .39, 65 Missouri.......

................. 41, 43, 51, 76 Nerada

.20, 34 New Hampshire.... New Jersey ......................10, 17, 22, 28, 79, 81, 83, 88 New Mexico ...

.74 New York......... ......................19, 30, 33, 42, 62 North Dakota.....

.................4, 59 Ohio

............. ................. 67 Oklahoma ........

.................9, 14 Rhode Island....

49 South Carolina.. South Dakota...

...........3, 36, 86, 90 Texas................7, 13, 15, 16, 18, 24, 26, 45, 46, 68, 77 U. S. C. C. App.....

............ 1, 2, 25 United States D. C.

........ 47, 71, 72 Utah

................ Vermont..

.......32, 52, 84 Virginia.................................2, 3, 27, 29, 56, 70, 82, 89 Washington.....

.........5, 48, 73 Wisconsin......

........11, 64, 66 1. Bankruptcy-Executory Contract.An executory contract by a corporation for the purchase of its own stock cannot be made the basis of a claim against its estate in bankruptcy, thus permitting the selling stockholder to share with creditors in its assets.-Keith v. Kilmer, U. S. C. C. A. 261 Fed. 733.

2.- Tracing Fund.-To entitle a depositor to recover the amount of checks deposited in an insolvent bank and uncollected on the date of its bankruptcy as a trust fund, he must identify and trace the proceeds into some fund or property which came into his hands of the trustee, and cannot so recover, where the checks had been deposited to the credit of bankrupt in other banks, which applied their proceeds on indebtedness of bankrupt to them.-In re Jarmulowsky, U. S. C. C. A. 261 Fed. 779.

3. Banks and Banking-Drawee Bank.-Under the Negotiable Instruments Law, a drawee bank is presumed to know the signature of the purported drawer of a check.-Minnehaha Nat. Bank of Sioux Falls v. Pence, S. D. 176 N. W. 37.

4. Bills and Note Interest.-Where plaintiff bank executed its accommodation note for $5,000 and interest to defendant bank, which thereafter deducted the amount of the note and interest, $5,208.63, from the account of the plaintiff, plaintiff was entitled to recover of defendant the amount so deducted.-First State Bank of Lucca v. First Nat. Bank, N. D., 176 N. W. 4.

5. Boundaries-Survey. - In a suit to quiet title, evidence of a surveyor who had made a mere visual survey without actual measurements or determination of the exact course of a boundary stream, although professionally competent to make such survey, was merely nonexpert evidence and incompetent to prove the location and direction of the stream, or to contradict or impeach the official government survey:-Rue v. Oregon & W. R. Co., Wash., 186 Pac. 1074.

6. Carriers of Goods-Value of Goods.-A contract fairly entered into by a shipper and a carrier, declaring the value of goods accepted for shipment, is binding upon the shipper in an action for the loss of such property.-Noone v. Southern Express Co., Fla., 83 So. 607.

7. Carriers of Passenger - Ordinary Care.Where defendant's employe, having transportation, was killed by one of defendant's interurban cars while crossing the track to board the same, the absence of statute or ordinance regulating the speed of defe.idant's cars while passing the station was immaterial, the operatives of the car owing the duty of using ordinary care to discover and avoid injuring persons who might be expected to be at the station.—Texas Electric Ry. v. Stewart, Texas, 217 S. W. 1081.

8.- Res Ipsa Loquitur,--First count of passenger's complaint against street railroad, alleging that he was sitting close to the rear of the car, using due care, when, through the negligence of the road, car ran off track and street and into stump of a tree, by reason of which passenger was thrown out of his seat, across the aisle, and against a seat on the other side, heid demurrable as not specifying any act of negligence causing the car to leave the track.-Redding v. Wilmington & Philadelphia Traction Co., Del., 108 Atl. 739.

9. Chattel Mortgages - Constructive Notice. After the due filing of a chattel mortgage, third parties are charged with notice of its contents to the same extent as if they had actual notice, and with notice of everything in instrument connected with description of mortgaged property which suggests inquiry as to identity of property intended to be mortgaged which, if pursued, would lead to an identification thereof. -First Nat. Bank v. Atchison, T. & S. F. Ry. Co., Okla., 186 Pac. 1086.

10.---Equity.-Where a judgment creditor sold a mortgaged chattel under execution and bought it in at a necessarily reduced price, it would be inequitable in an ordinary case for a court of equity to set aside the mortgage, for that would enable the judgment creditor to retain the property free from any lien having necessarily procured it at a reduced price.-Dey V. Moody, N. J., 108 Atl. 757.

11.- Inconsistent Election. An effort to recover from a trustee in bankruptcy brick for which plaintiff held a bill of sale, in effect a chattel mortgage, executed by the bankrupt, was not an election inconsistent with his right to sue defendant for converting another part of the brick prior to the bankruptcy proceedings. -Ullman v. Austin, Wis., 176 N. W. 60.

12. Compromise and Settlement-Mistake. Where, through mistake, certain stock certificates were issued to a contractor with the company entitled to be paid for his work in stock, there was no settlement between the parties.

mies of

White Star Coal Co. V. Pursifull, Ky., 217 S. error to charge that the jury should not conW, 1020.

sider in mitigation of damages the fact of her

remarriage, inadmissible evidence as to such re13. Contracts - Mutuality. – An agreement marriage, introduced by defendant, having been founded on a consideration is not void for want admitted.—Texas Electric Ry. v. Stewart, Tex.,

217 S. W. 1081. of mutuality because one party has an option and the other none.-Foster v. Wright, Texas, 27. Divorce-Alimony.-"Alimony" is an al217 S. W. 1090.

lowance in the nature of a partition of the hus

band's property of which the wife is entitled to 14.- Offer and Acceptance.The assent must a reasonable share for her maintenance.-West be absolute and final, as one who makes an

iv. West. Va., 101 S. E. 876. offer cannot be bound by a conditional accept 28.- Condonation.- Where husband resumed ance.-Foster v. West Publishing Co., Okla.,

relations with his wife not knowing that she

had been guilty of adultery, there was no con186 Pac. 1083.

donation, though the parties had intercourse. 15. Public Policy.-A contract between a

Van Wickle v. Van Wickle, N. J., 108 Atl. 761. business college and a pupil, requiring the pupil

29.- Contempt.-Commitment of husband to

jail for failure to pay alimony should not be to board in homes approved by the college, is

ordered except where it appears that husband not contrary to public policy.-Castleberry v. is contumacious, but where it so appears there

should be no hesitancy in imposing such penalty. Tyler Commercial College, Tex., 217 S. W. 1112.

-West v. West, Va., 101 S. É. 876. 16.- Substantial Performance.—A contract 30.- Contempt.-Failure of plaintiff husband, must be at least substantially performed accord suing for divorce, to pay alimony and counsel

fees awarded defendant wife, is not a ground ing to the terms of agreement before a party

for striking out his complaint on the wife's can have any right of action thereon.-Enter

motion, though possibly a sufñcient basis to stay prise Co. v. Neely, Tex., 217 S. W. 1088.

all the husband's proceedings in the action.17. Conversion-Equity.-Where an executor

Naveja v. Naveja, N. Y., 179 N. Y. S. 881.

31. Eqnity-Bill of Review.-Bill of review is is directed to sell land and divide the proceeds,

maintainable by a party to an original suit, or by the land is converted into personal property. some person holding under him or in privity Cranstoun v. Westendorf, N. J., 108 Atl. 776. him.-Stuart v. Strickland, Ala., 83 So, 600.

32.--Parties and Privies.-Only parties or 18. Corporations-Estoppel.-Where property

privies to original suit may bring petition in was sold to a corporation acting through its nature of bill of review.-Fillmore v, Morgan's manager, was purchased for the use and benefit Estate, Vt., 108 Atl. 841. of the corporation, and the latter ratified the 33. Estoppel-Equitable Estoppel.—The doc

trine of equitable estoppel rests on the doctrine contract and the security mortgages by accept

that, of two innocent parties, the one who has ing and using the property, it is estopped to made a loss possible must bear it: it not being deny the validity of the security instruments, necessary that the party estopped intended to

mislead the other, and it not being material though they were executed prior to its legal

whether his conduct was affirmative or negative organization as a corporation, and its successors active or quiescent -McConnell v. Hellwig, N. are also bound by such ratification and estoppel.

Y., 179 N. Y. State 882. -Thorndale Mercantile Co. v. Continental Gin

34. Holding Out Agent.-Where the owner Co., Tex., 217 S. W. 1059.

of a mining claim put another in position to

hold himself out as holder of an option to sell, 19. — Foreign Corporation. Unless defendant and purchasers dealt with such other on the asforeign corporation is doing business in the sumption, the owner cannot urge the agency state, the temporary or permanent residence of of such other and his misconduct as ground its president in the state does not bring it for setting aside his deed to the purchasers, within the state, so that service upon him will since one who makes it possible for a person constitute service upon it.-Wollman v. Newark to perpetrate a wrong on another must suffer Star Pub. Co., N. Y., 179 N. Y. S 899.

the consequences.-Keyworth v. Nevada Pack

ard Mines Co., Nev., 186 Pac. 1110. 20.- Personal Act of Officer. Where the

35. Evidence Burden of Proof.-The phrase holder of an option on mining claims became director and officer of a company formed to

"burden of proof," in its true sense, means the operate such claims after exercise of the option,

risk of nonpersuasion upon the evidence in the

case, but is also used to designate the duty to the company was not charged with knowledge

go forward and produce evidence. Spilene v of the officer's fraud on the owner of the claims: he having acted wholly for himself.--Keyworth

Salmon Falls Mfg. Co, N. H., 108 Atl. 808. v. Nevada Packard Mines Co., Nev., 186 Pac. 1110. 36.---Contradictory Stipulation.-Oral evi

dence was admissible to contradict a stipulation 21.- Receiver.-Receiver should not bring ac

unon' which judgment was entered, where it was tion against directors and corporations to im

alleged that it was procured by fraud.-Purinton pound assets fraudulently obtained from corpo

v. Purinton, S. D., 176 N. W. 31. ration by the directors without authority from court by which he was appointed.-Cahall V.

37.---Inference on Inference. One inference Lofland, Del., 108 Atl. 752. .

of fact may not be based upon another inference

of fact.-Sliwowski v. New York, N, H. & H. R 22. Covenants-Restrictions.--A grantor's re

Co., Conn., 108 Atl. 805. lease of restrictive covenants does not preclude other parties, to whom he made deeds previously,

38. Execution-Inadequacy of Price.-Mere or makes them subsequently, from enforcing inadequary of price was not sufficient to invali. their rights against any purchaser violating the

Nate execution sale as against the judgment restrictive covenants.-Muller v. Weiss, N. J.,

debtor's grantee, where the proceedings were 108 Atl. 768.

fair and regular and there is nothing in the

record to suggest fraud or concealment.-Na23. Criminal Law-Instructions. Instructions

tional Realty Sales Co. v. Ewing, Utah, 186 Pac. that are argumentative, rhetorical and redun

1103. dant are improper.-Gottlieb v. Commonwealth, Va., 101 S. E. 872.

39.- Redemption-No creditor can redeem

from an execution sale unless he has a lien on 24,- Principal.- One may be a principal who

the property sought to be redeemed.-Beigler is not bodily present when the offense is committed.--Middleton v. State, Tex., 217 S. W. 1046.

v. Chamberlin, Minn., 176 N. W. 49.

40. Execmptions-Insurance. As applied to a 25. Death-Interest in Tort.-Interest is not

pre-existing note of insured and his life policies allowable in admiralty on a tort claim for death

one having then no surrender value, and the of a seaman prior to liquidation of the claim.

other afterwards allowed to lapse, held that although a number of other claims, similar, ex

Act No. 189 of 1914. exempting proceeds of life cept for amount of damages, were liquidated at

insurance from liability for debt. if not secured a prior date.-Union Steamboat Co. v. Fitzgib

by pledge of the policy, impaired only slightly bons, U. S. C. C. A., 261 Fed. 768.

and remotely the obligation of the pre-existing 26.- Remarriage of Plaintiff. In a wife's contract, and so did not violate the Constitution. action for the death of her husband it was not I -Succession of Clement, La., 83 So. 589.

41. False Imprisonment-Malice.--In an ac 54.- Res Judicata.-Judgment of Court aption for false imprisonment, malice need not be proving construction of ditch as public benefit proven when recovery for actual damages only and benefit to certain lands is res judicata as to is prayed, but must be proven where punitive those questions in subsequent attack on assessdamages are sought.-Hill v. S. S. Kresge Co., ments to maintain ditch.-Book v. Trigg, Ky., Mo., 217 S. W. 997.

217 S. W. 1013. 42. Brandnlent Conveyances-Presumption.

55. Landlord and Tenant-Surrender. Where The presumption of fraudulent intent, which the lessor replied to lessee's offer to surrender the statute creates in favor of creditors in case of lease by oral negotiations concerning the agreed a transfer of property to wife, may be over improvements and by letter stating a hope that come.-Flower City Brewing Co. v. Edwards, N. the premises would soon be ready for lessee, Y., 179 N. Y, State 887.

lessee was justified in treating the reply as a

rejection of the offer to surrender.-F. B. Nor43. Gaming-Gambling Contract.-A valid man Co. v. E. I. Du Pont de Nemours & Co., Del., contract of sale may be made for future deliv 108 Atl. 743. eries of grain, even though seller has no grain on hand and will have to provide himself with 56. Libel and Slander-Privilege.- Manufacthe requisite quantity and quality before time turing company's letter written by treasurer to of delivery; such contracts being illegal only

customer relative to misappropriation of comwhere there is no intention to procure and de

pany's funds by its former representative, who liver, or receive and pay for the grain; the con

it had cause to believe was misrepresenting tract under such circumstances being a mere continuance of his connection with it, in furtherwager.--Youtz V. McVean, Mo., 217 S. W. 1000. ance of his own business, held privileged within

the law of libel.-Vaughan v. Lyton, Va., 101 S. 44. Gas-Public Utility.-Where the property

E. 865. of a public utility, as a gas company, has increased so enormously in value since its acquisi 57. Master and Servant – Fellow Servant.tion as to render a rate permitting a reasonable Where plaintiff's fellow-workman operating return on such increased value unjust to the drums controlling guy lines knew when he lowpublic. such a rate will not be fixed or per ered a stone moved by a derrick that plaintiff mitted.--State Public Utilities Commission V. was standing in a dangerous place, apparently Springfield Gas & Electric Co., Ill., 125 N. E. 891. unaware that it was so, when he directed his 45. HomicideGood Reputation. In a prose

fellow workman to act, the Court properly incution for assault to murder, the good reputa

structed that jury might find for plaintiff on last tion of the prosecutor was not admissible in clear chance theory.-Olson v. Fox, N. H., 108 evidence as an original proposition.-Jupe v.

Atl, 811. State, Tex., 217 S. W. 1041.

58.- Notification of Injury.-Tho employers, 46. Husband and wite Statute of Limita. one of whom saw the injured employe a few mir tions.-Where a husband abandoned his wife, utes after the accident, having known practically leaving her in possession of the community from the time of the accident the extent and lands, which possession she retained for 16 circumstances of the injury, absence of notificayears, the wife could not acquire title to the tion in the manner provided by the statute will lands by limitations.-Hardin v. Hardin, Tex., not prevent recovery.-Smith y. White, La., 83 217 S. W. 1108.

So. 584. 47. Injunction-Right of Employment.-The 59.- Respondeat Superior. The owner of an power to preserve the public peace and to ar automobile kept and used for the business and rest and prosecute persons for crime cannot be pleasure of the family is liable for its negligent made to support action depriving persons of operation by his wife, when driven for such purtheir constitutional right to employ others, or poses with his knowledge and consent. -Ulman to enter into employment, and injunction will v. Lindeman, N. D., 176 N. W. 25. lie to restrain police and other officers, when 60. Mortgages-Equal Equities. In the case thus acting beyond lawful power.-American

of the conveyance by the mortgagor of all the Steel & Wire Co. of New Jersey v. Davis, U. S.

mortgaged property to different purchasers at D. C. 261 Fed. 800.

the same time, their equities must be regarded as 48. Insurance-Application for.-In a general equal, and each must contribute ratably to the sense the application may be regarded as an discharge of the common burden. -Fullerton offer to contract and the certificate of member Savings Bank v. Des Granges, Cal., 186 Pac. ship as an acceptance of the offer.-Supreme As

1052. sembly of United Artisans V. Johnson, Wash., 61.- Foreclosure. The statutory right to re186 Pac. 1065.

deem from a real estate mortgage foreclosure 49.- Minimizing Damage.-Under a policy re does not exist unless the property has been quiring insured in the event of a fire to protect delivered to the foreclosure purchaser.-Whitethe property from further damage and put it in man v. Taber, Ala., 83 So. 595. the best possible order, the failure to do so did

62.- Suspension of Alienation.—Where exenot prevent a recovery except for such of the cutors and trustees, under a power that was property as could have been saved by the use of

void, by reason of unlawful suspension of the reasonable means at his command.-Messler V.

power of alienation, mortgaged property, a Williamsburg City Fire Ins. Co., R. I., 108 Atl. judgment forclosing the mortgage, in an action 832.

wherein the executors, trustees, and heirs were 50.- Reinstatement.-In view of Code 1907,8 all made parties defendant, and did not answe 4579. where life policy gave insured the right stopped the heirs from afterwards setting up to have policy reinstated after default in pay. their interest against purchasers at the forement of premium, by performance of specified closure sale.--Field v. Chronik, N. Y., 179 N. Y. conditions, the effect of reinstatement after com State 891. pliance with such conditions was to continue in 63.-Municipal Corporation - Taxation.-The force the original policy and not to create a

power to tax enjoyed by municipality only by new policy.--Mutual Life Ins. Co. of New York v.

virtue of express grant from state does not inLovejoy, Ala., 83 So. 591.

clude the power to exempt and classify.-Jones 51. Judgment-Arrest of.-Failure to state a V. Broening, Md., 108 Atl. 785. cause of action may be urged for first time on 64. Parties--Intervention.-Judgment creditor motion in arrest of judgment.-Swift v. Central which had garnisheed debtor's funds in a bank Union Fire Ins. Co., Mo., 217 S. W. 1003.

was entitled to intervene in action against 52. — Collateral Attack.-The rule that a debtor where plaintiff's therein had also by garjudgment by a court of competent jurisdiction nishment action impounded the money in poswill be set aside only for fraud which is extrin session of the bank, preventing bank from paysic or collateral applies to strangers as well as ment of money to judgment creditor; judgment parties to the action.-Filmore v. Morgan's Es creditor having "an interest in the subject-mattate, Vt., 108 Atl. 841.

ter of the controversy" requiring that it be made 53. Misdescription. That defendants, in a party to the action for the "due protection" suit to set aside a fraudulent conveyance, did

of its rights, under St. 1917. § 2610.-Scheuer V. not call attention to the misdescription of the Regal Oil-Gas Burner Co., Wis., 176 N. W. 75. land in the complaint, which later entered into 65. Periury-Instruction. - Where defendant the decree, is not fraud, which, coupled with gave money to a witness in a criminal prosecuplaintiff's mistake, might constitute ground for tion to influence him to make a statement which equitable relief as to decree; they being under he dictated, though he had no personal knowlnö duty to communicate the fact. -Stuart V. | edge of the facts, and knew that the witness Strickland, Ala., 83 So. 600.

had full knowledge and had testified to them

before the grand jury, an instruction that his ben made subject to the lease, or the purchaser honest belief that he was influencing the wit may have had notice thereof. F. B. Norman Co. ness to give a truthful statement would not be v. E. I. Du Pont de Nemours & Co., Del., 108 a defense was called for by the evidence. --State Atl. 743. v. Liss, Minn., 176 N. W. 51.

79.----Misrepresentation. --The seller of land 66. Physicians and Surgeons-Care.Where a

to a buyer who intended to erect an apartment physician exercises that degree of care, dili

house is not entitled to specific performance gence, judgment, and skill which others in good

where he misrepresented the dimensions of the standing of same school of medicine usually ex

lots and also the cost of excavating the rock ercise in same or similar localities under like

on the property.-Muller v. Weiss, N. J., 108 or similar circumstances, having due regard to

Atl. 768. the advanced state of science at such time, fail 80.- Rescission.-Vendee in a contract of ure to diagnose correctly does not render him sale of land having repudiated the transaction liable.-Jaeger v. Statton, Wis., 176 N. W. 61. and attempted to rescind the contract, it was no

longer necessary for the vendor, before bring67.--Consent to Operation. In an action

ing a suit for specific performance, to tender against a surgeon employed to operate for ap

the vendee a deed or a certificate of title propendicities for the removal of Fallopian tubes vided for in the contract.-Teague Iny. Co. v. without plaintiff's consent, the burden was on

Setchel, Cal., 186 Pac. 1046. plaintiff to prove that she did not expressly or impliedly consent to their removal.-Wells v.

81. Trade Marks and Trade Names-Unfair Van Nort, Ohio, 125 N. E. 910.

Trade.-It is unfair trade, for which injunction

will issue, for competitors to dress their taxi68. License.-A license to practice medicine

cabs so that by the ordinary patron they are is a privilege or franchise granted by the gov

not distinguished from those of the yellow taxiernment.-Harris v. Thomas, Tex., 217 S. W.

cabs of complainant, which had earned a pat1068.

ronage and good will under a peculiar and dis69. Principal and Agent. - Ratification. - tinctive dress of its cabs, the predominant feaWhere a principal is known, but not named in ture being the conspicuous yellow body: dethe agreement, he cannot thereafter be held un fendants being barred by their intentional fraud less he ratifies the contract.-Tryon v. Clinch, of the plea of common property in color,--Taxi Cal., 186 Pac. 1042.

& Yellow Taxi Operating Co. v. Martin, N. J. 70. RallroadTrespasser. Right of mere

108 Atl. 703. trespasser on railroad to recover for injury by 82. Vendor and Purchaser - Interest.-The train must be bottomed on the company's fail purchaser of land involved in partition suit unure, after discovering him, to exercise care to der contract composed of his proposal and the avoid injuring him; no duty of lookout being approving decree of the court, both silent as owed him.-Gunter's Adm'r v. Southern Ry. Co., to the subject of interest on the purchase price Va., 101 S. E. 885.

and time for taking possession, is liable for 71. Removal of Causes-Jurisdiction.-To au

interest on the unpaid purchase money from the thorize removal of a cause into a particular

date on which he took possession, prior to the District Court on the ground of diversity of

time fixed by the contract for setlement.Bowcitizenship, the cause must not only be one over

man v. Newton, Va., 101 S. E. 882. which a United States District Court is given

83.- Notice to Purchaser. - Purchasers of original jurisdiction in invitum, but unless plain premises in the possession of a lessee having tiff has expressly or impliedly consented to the knowledge of the lease are chargeable with no removal. it must be one over which the selected tice of an option of purchase therein-McClung court could have taken original jurisdiction. Drug Co. v. City Realty & Investment Co., N. J. Isaac Kubie Co. v. Lehigh Valley R. Co., U. S. 108 Atl. 767. D. C., 261 Fed. 806.

81. Waters and Water Courses-Nonuser of 72. Jurisdiction.-A suit in a state court Right. One to whom a right was conveyed to for removal of an administrator held not re take water from a spring could not lose such movable. for want of jurisdiction of the federal right by mere nonuser: intent to abandon not court over the subject-mater. --White v. Keown, being inferred from a nonuser alone. Clement U. S. D. C., 261 Fed 814

v. Rutland Country Club, Vt., 108 Atl, 843. 73. Sales_Breach.—Where, before the time 85. Wills-Contest.-In proceedings to contest named in a contract for the delivery of manufac a will where the issue is fraud, much latitude tured articles, the manufacturing company in the admission of evidence is allowed to the breached the contract and notified the buyer that discretion of the trial judge, and his rulings it would not perform it, the buyer, relying upon will be reversed only for abuse of his discretion. the breach for the recovery of damages, was -Awtrey v. Wood, $. C., 101 S. E. 920. not required to allege and prove ability and

86. -Mistake._A mistake in a will as to the readiness to perform.-Citizens' Bank v. Willing,

land covered by a devise may be corrected at Wash., 186 Pac. 1072.

suit of the devisee after testator's death, though 74.- Delivery. Where a contract for the the transfer by the will is voluntary.-O'Conner sale of goods provides for their delivery at a v. McCabe, S. D., 176 N. W. 43. designated point f. 0. b., and where the title 87.- Power of Disposition. - A qualified from the seller to the buyer passes, other terms

power of disposition, such as a power to use or of the contract having been complied with the dispose of property for the support of the beneplace so designated is the point of delivery, as

ficiary, does not create a fee simple, whether place so designated is the point of delivery, as

annexed to a life estate expressly given, or to a respects damages for buyer's refusal to accept. general devise not specifying the quality of the R. W. Rounsa yall & Co. v. H. Herstein Seed

estate.--Shaw v. Hughes, Del., 108 Atl. 747. Co., N. M., 186 Pac. 1078.

88.- Remainder.--A testamentary gift in re75.- Lost Profits.- Where the seller of logs mainder, expressed in terms to pay and distrib failed to deliver as fast as agreed, and the ute only, is generally contingent, and does not market price declined before all were delivered,

vest until the time for distribution arrives, but but after they should have been delivered, the

the rule does not apply when the gift in rebuyer was entitled to recover the profits lost by

mainder is postponed for the conveniences of reason of such decline. Usrey Lumber Co.

the estate, in which case the gift vests at the Huie-Hodge Lumber Co., La., 83 So. 578.

death of testator.-Cranstoun y. Westendorf, 76.- Option.-Contract, giving one party the N. J., 108 Atl. 776. privilege of buying grain to be delivered at a 89. Witnesses_Impeachment.-While a witfuture date in return for valuable considera ness cannot be impeached by questions regardtion paid to other party, is not a contract of

ing his personal conduct not relevant to the sale, but an option; an option meaning a privi

case on trial, but only by evidence of his bad lege.--Yontz v. McVean, Mo., 217 S. W. 1000.

general reputation for truth and veracity, he 77._ Rescision. One who depends on the must answer relevant or material questions, equitable right to rescind a contract of sale however much they disgrace or discredit his for the buyer's fraud has the burden to prove character.-Hunt V. Commonwealth, Va., 101 E. that a subsequent purchaser, resisting the ac E. 896. tion. took the property with notice of the fraud.

90.- Self Crimination.-The defendant, even -Cox v. Collom, Tex., 217 S. W. 102.

in an incest case, who takes the witness stand, 78. Specific Performance - Evidence. The is entitled to be protected in his constitutional mere fact that lessor has agreed to sell demised right to not be compelled to give evidence premises does not bar lessee's right to specific against himself. State V. Morgan, S. D., 176 performance of the lease, since the sale may have' N. W. 35.

Central Law Journal.

income is derived; that an income tax, as

against non-residents, is not only not a ST. LOUIS, MO., APRIL 16, 1920.

property tax but is not an excise or privilege tax, since no privilege is granted; the

right of the non-citizen to carry on his busiLIMITATIONS ON POWER OF A STATE TO TAX INCOMES OF NON-RESIDENTS.

ness or occupation in the taxing state being derived, it was said, from the provisions

of the federal Constitution. In reply to The United States Supreme Court, in this contention, Justice Pitney, who wrote two recent opinions, handed down on the the opinion of the Court, said: same day has settled several perplexing questions concerning the power of a state “States are not restricted to property taxto tax the income of non-residents. (Shaf ation, nor to any particular form of excises. fer v. Carter, and Travis v. Yale & Towne

In well-ordered society, property has value

chiefly for what it is capable of producing, Mig. Co., both opinions being handed down

and the activities of mankind are devoted March 1, 1920.)

largely to making recurrent gains from the

use and development of property, from tilThe opinion in the Shaffer case discusses

lage, mining, manufacture, from the emconstitutional objections to any form of ployment of human skill and labor, or from income taxation assessed against non-resi a combination of some of these; gains capadents, while the opinion in the Travis case

ble of being devoted to their own support,

and the surplus accumulated as an increase discusses the power of a státe to discrim

of capital. That the state, from whose inate between residents and non-residents

laws property and business and industry in assessing such a tax. In the Shaffer case derive the protection and security without the Oklahoma Income Tax Law providing which production and gainful occupation for the taxation of the “net income from

would be impossible, is debarred from exall property owned and of every business,

acting a share of those gains in the form

of income taxes for the support of the govtrade or profession carried on in this state

ernment, is a proposition so wholly inconby persons residing elsewhere,” was held sistent with fundamental principles as to be constitutional, there being no discrimination | refuted by its mere statement. That it may in assessing the tax against such non- resi tax land but not the crop, the tree but not dents. In the Travis case the New York

the fruit, the mine or well but not the prod

| uct, the business but not the profit derived Income Tax Law was held unconstitutional

| from it, is wholly inadmissible.” on the sole ground that non-residents subject to the tax were not allowed the same The Court then takes up the objection personal exemptions that were granted by that to tax the income of non-residents is the act to resident taxpayers.

practically to put obstacles in the way of

the exercise of the right of a citizen of The plaintiff in the Shaffer case was a another state to carry on a business in the resident of the city of Chicago who owned taxing state. The Court concedes that a and operated certain oil wells in the state state may not prohibit citizens of other of Oklahoma. The net income from the states from carrying on legitimate business plaintiff's Oklahoma properties was $1,500,- within its borders but “it does not follow," 000, upon which a tax of $76,000 was levied says the Court, “that the business of nonand made a lien on the plaintiff's property residents may not be required to make a in Oklahoma. The plaintiff contended in ratable contribution in taxes for the support the first place, that being a non-resident, of the government. On the contrary, the although carrying on an occupation in Ok- very fact that a citizen of one state has the lahoma, he could not be required through right to hold property or carry on an occuincome taxation to contribute to the gov pation or business in another is a very reaernmental expenses of the state whence his 'sonable ground for subjecting such non

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